VISMO LIMITED - Terms of Business

1. BACKGROUND

This document contains the terms of business that shall apply to the supply of the Solution by Vismo to the Client. It is intended to be used in conjunction with the Order placed by the Client for the Solution.

2. DURATION

The Agreement shall commence on the Commencement Date and shall continue for the Initial Term and afterwards for successive periods of twelve months or such other period specified in the Order (each a "Renewal Term") subject to termination in accordance with its terms.

3. SUPPLY OF SOLUTION

3.1 In consideration of the Charges Vismo shall supply the Solution to the Client in accordance with the terms of this Agreement.

3.2 Vismo is prepared to supply services and license software on these terms only, to the exclusion of any terms which the Client or any other third party (including any reseller) purports to apply, whether in a purchase order or otherwise, which are hereby rejected and shall (as appropriate) be excluded from the Agreement.

4. SOFTWARE LICENCE

4.1 Subject to the terms of the Agreement, Vismo hereby grants the Client a non-exclusive and non-transferable licence to:

4.1.1 install and use the Software for the Term; and

4.1.2 use the Software for the Client's own business purposes only.

4.2 The Client shall not:

4.2.1 copy, adapt, translate, arrange, alter, reverse engineer, decompile or disassemble the Software except to the extent permitted by applicable law;

4.2.2 make the Software available for third parties to use;

4.2.3 exceed the licensed number of users of the Software as set out in the Order;

4.2.4 cause or permit the Software to be used for the purpose of or in connection with services provided by a third party to the Client, including operations that are outsourced by the Client; or

4.2.5 use the Software otherwise than in accordance with this Agreement.

5. CHARGES AND PAYMENT

5.1 In consideration of the supply of the Solution to the Client by Vismo the Client shall pay the Charges to Vismo in accordance with this Clause 5. Except as provided to the contrary in this Agreement, all Charges are non-refundable.

5.2 The Client shall pay the Charges in full without set-off within thirty (30) days of the date of invoice which shall be issued in respect of the supply of the Solution on the date of the Order and (where applicable to a Renewal Term) annually thereafter. All Charges are exclusive of VAT, which shall be paid by the Client in addition.

5.3 Vismo shall be entitled to set off any amount owed by the Client to Vismo against any amount due to the Client under this Agreement.

6. PERFORMANCE

6.1 The Client shall procure all permissions, licences (including licences of third party software) and other authorisations from third parties, including competent authorities, which are or may reasonably be expected to be required for the purpose of or in connection with the receipt and use of the Software and the Solution.

6.2 The client shall:

6.2.1 provide Vismo with all co-operation (including with any competent authorities) information and assistance Vismo may reasonably require to provide the Solution; and

6.2.2 as soon as reasonably practicable notify Vismo of any circumstances which prevent or hinder or which may reasonably be expected to prevent or hinder Vismo from performing the Agreement, in each case giving the reasons in reasonable detail.

7. SOLUTION AVAILABILITY

7.1 Vismo is entitled (acting reasonably) to interrupt, prevent, postpone, delay, limit, or curtail the Solution due to:

7.1.1 actions reasonably required in order to comply with applicable law, including the directions of a Competent Authority;

7.1.2 the Solution being used by the Client in breach of this Agreement;

7.1.3 non-payment of any Charges by the Client; or

7.1.4 maintenance, inspection, servicing, repair, renewal or replacement of the Software or the systems or networks used to provide the Solution,

7.1.5 and Vismo shall not be liable for any loss, damage, cost or expense of the Client incurred or sustained, nor shall the Charges be reduced, as a result.

7.2 Vismo shall, where reasonably practicable, give reasonable prior notice in advance to the Client of any matter to which Clause 7.1 refers, and where notice in advance is not reasonably practicable, notice shall be given within two (2) Business Days after the occurrence of the relevant event.

7.3 The Client acknowledges and agrees that the performance of the Solution may be interrupted or impaired due to:

7.3.1 a network failure by the mobile network operator with which the smartphone is registered;

7.3.2 the smartphone being unable to connect to either a GSM or WCDMA network (whether due to geographic, atmospheric or other conditions or circumstances beyond the control of Vismo);

7.3.3 a hardware fault in the smartphone;

7.3.4 a fault in any third party software installed on the smartphone; or

7.3.5 any fault or failure in, or impaired performance of, the Client's systems on which the Software is operating, and Vismo shall not be liable for any loss, damage, cost or expense of the Client incurred or sustained, nor shall the Charges be reduced, as a result.

8. INTELLECTUAL PROPERTY RIGHTS

8.1 Except and to the extent provided in the Agreement, neither party shall have or acquire any right, title or interest in or to any Intellectual Property Rights owned by or licensed to the other at the Commencement Date and all rights are reserved to the owning party or its licensors.

8.2 For the duration of the Agreement and subject to Clause 12, Vismo shall defend the Client against, and hold the Client harmless in respect of, any claim, allegation, action, dispute or proceedings that the Software used in accordance with the Agreement infringes the Intellectual Property Rights of any third party.

9. TERMINATION

9.1 Either party (the "Non-Defaulting Party") may by giving notice to the other (the "Defaulting Party") terminate the Agreement if the Defaulting Party commits a material breach of the Agreement which, in the case of a breach capable of remedy, is not remedied within thirty (30) Business Days after the Non-Defaulting Party has given notice containing details of the breach, requiring such breach to be remedied and stating that, if it is not, this Agreement may be terminated.

9.2 Either party may at any time, by notice to the other, terminate the Agreement as from the date of expiry of the notice if an Insolvency Event occurs in relation to the other.

9.3 Either party may terminate the Agreement at any time by giving to the other not less than thirty (30) days' notice to expire at the end of the Initial Term or any Renewal Term.

10. EFFECT OF TERMINATION

10.1 Termination of this Agreement does not affect:

10.1.1 the rights or liabilities of the parties under this Clause 10 or which have accrued on or before termination; and

10.1.2 the continuance in force of Clauses which expressly or by their implication survive termination of this Agreement.

10.2 In all cases of termination of the Agreement:

10.2.1 Vismo shall:

(a) return the Client's data to the Client; and

(b) as soon as reasonably practicable cleanse all Client's data from Vismo's systems and shall certify that the cleansing is complete;

10.2.2 the Client shall cease to use the Software and the Solution; and

10.2.3 each party shall return or destroy the Confidential Information of the other in its possession or control, and in the case of destruction, certify in writing that destruction has taken place.

11. WARRANTIES

11.1 Vismo warrants that for a period of [90] days from the date of installation (the "Warranty Period") the Software will, when properly used, perform substantially in accordance with the functions described in the Specification (provided that the Software is properly used on the hardware and with the operating system for which it was designed as referred to in the accompanying documentation).

11.2 The Client acknowledges that the Software:

11.2.1 has not been developed to meet the Client's individual requirements, and that it is therefore the Client's responsibility to ensure that the facilities and functions of the Software as described in the Specification meet the Client's requirements; and

11.2.2 may not be free of bugs or errors, and agrees that the existence of minor errors shall not constitute a breach of a licence granted under these terms.

11.3 If, within the Warranty Period, the Client notifies Vismo in writing of any defect or fault in the Software in consequence of which it fails to perform substantially in accordance with the Specification, and such defect or fault does not result from the Client having amended the Software or used it in contravention of the terms of a licence granted under these terms, Vismo will, at its sole option, either repair or replace the Software, provided that the Client makes available all the information that may be necessary to help Vismo to remedy the defect or fault, including sufficient information to enable Vismo to recreate the defect or fault.

11.4 Each party warrants to the other that it has full right, power and authority to enter into and perform its obligations under this Agreement.

11.5 All warranties, conditions, or terms not set out in the Agreement and which would otherwise be implied or incorporated into the Agreement by reason of statute, common law or otherwise (other than as to the title to goods and statutory interest) are hereby excluded, except to the extent they may not be excluded or limited by law.

12. LIMITATION OF LIABILITY

12.1 Nothing in this Agreement shall affect the liability of either party for death or personal injury, fraud, or any other liability to the extent it cannot be excluded or limited by law.

12.2 Subject to Clauses 12.1 and 12.3 Vismo's total liability to the Client for all claims, losses, liabilities, damages, costs and expenses under this Agreement whether in contract, tort (including negligence) or otherwise shall not exceed an amount equal to the initial Charges paid in respect of the licence of the Software.

12.3 In no event shall Vismo be liable to the Client for any:

12.3.1 loss of profit, reputation, business, revenue or goodwill, anticipated savings, loss or damage to data; or

12.3.2 consequential or indirect loss, or damage howsoever arising under this Agreement.

13. CONFIDENTIALITY

13.1 Each party undertakes to the other:

13.1.1 to keep confidential all Confidential Information of the other;

13.1.2 not to disclose the Confidential Information of the other without the other's prior written consent except to those of its employees who have a need to know the same;

13.1.3 not to use the Confidential Information of the other except for the purposes of performing its obligations under the Agreement; and

13.1.4 to keep separate from all other information all Confidential Information of the other in its possession or control.

13.2 The provisions of Clause 13.1 shall not apply to Confidential Information to the extent that it is:

13.2.1 already in the other's possession on the date of its disclosure;

13.2.2 in the public domain other than as a result of a breach of this Clause 13;

13.2.3 required to be disclosed pursuant to applicable law or other governmental regulation or under any official or regulatory request or order of any regulatory body or official (but only to the extent and for the purpose of that disclosure); or

13.2.4 required to be disclosed in connection with proceedings before a court of competent jurisdiction or under any court order or for the purpose of receiving legal advice (but only to the extent and for the purpose of that disclosure).

13.3 Each party acknowledges that the other's Confidential Information is valuable and that damages might not be an adequate remedy for any breach of Clause 13 and accordingly a party will be entitled, without proof of special damage, to an injunction and other equitable relief for any actual or threatened breach of Clause 13.

14. DATA PROTECTION

14.1 Each party shall ensure that it shall comply with the Data Protection Act 1998 (the "DPA").

14.2 All personal data acquired by a party from another shall be returned or deleted (at the option of the requesting party) on request save to the extent required by that party to discharge its obligations under the Agreement or under any legal or regulatory requirement, and any personal data which are retained shall be returned or deleted immediately they are no longer required for those purposes.

14.3 The parties acknowledge that the Client shall be the data controller in respect of any personal data made available by the Client to Vismo for the purposes of the Agreement ("Relevant Personal Data").

14.4 Vismo shall process Relevant Personal Data only in accordance with the Client's instructions, and shall implement appropriate physical, technical and organisational measures to protect the Relevant Personal Data against unauthorised or unlawful processing and against accidental loss, destruction or damage.

14.5 The Client hereby instructs Vismo, for the purposes of regulations relating to data protection, to process Relevant Personal Data in the course of supplying the Solution under the Agreement.

15. ENTIRE AGREEMENT

15.1 This Agreement constitutes the entire agreement between the parties relating to its subject matter, and supersedes all representations, including all pre-contract misrepresentations and misstatements negligently or innocently made, agreements, negotiations or understandings between the parties, which are not set out in the Order, except that this Clause does not affect the liability of either party for any fraudulent misrepresentation.

15.2 Each of the parties represents, warrants and undertakes that:

15.2.1 in entering into the Agreement, the party does not rely on any statement, representation, warranty or understanding (whether negligently or innocently made) of any person (whether party to the Agreement or not) other than as expressly set out in this Agreement; and

15.2.2 it shall not claim any remedy in respect of statements, representations, warranties or understandings made or repeated in this Agreement or in relation to this Agreement, other than breach of contract, and which shall be to the exclusion of any other remedy in respect of such statements, representations, warranties or understandings upon which it may have relied in entering into this Agreement, whether for misrepresentation or otherwise.

16. GENERAL

16.1 Force Majeure: Neither party shall be liable to the other for any breach of the Agreement to the extent such breach results from any event which is beyond the reasonable control of the party liable to effect performance, including acts of God, war, terrorism, fire and natural disasters.

16.2 Amendment: An amendment to the Agreement is ineffective unless it is in writing, expressly purports to amend the Agreement and is signed by both parties.

16.3 Remedies are cumulative: The rights and remedies provided by this Agreement are cumulative and (unless otherwise provided in this Agreement) are not exclusive of any rights or remedies provided by law or in this Agreement.

16.4 Further assurance: Each party shall at the request and cost of the other execute all deeds and other documents, and do all things that the other may require (acting reasonably) in order to give effect to the terms of this Agreement.

16.5 Notices: Any communication to be given in connection with the matters contemplated by this Agreement shall be in writing and shall either be delivered by hand or sent by first class pre-paid post (or in the case of overseas post, by airmail) or facsimile transmission or e-mail. Delivery by courier shall be regarded as delivery by hand. Communications shall be sent to the address or e-mail address of the relevant party referred to in the Order.

16.6 Announcements and publicity: No party may make any press conference, announcement or other communication concerning the Agreement or in connection with either party or its group companies without the prior written consent of the other except as may be required by applicable law, and provided that (in any case) the communication is made only after reasonable consultation with the other party.

16.7 Waiver: Any failure or neglect by either party to enforce any of the provisions of this Agreement will not be construed nor deemed to be a waiver of that party's rights and does not affect the validity of the whole or part of this Agreement nor prejudice that party's rights; and any waiver by either party of its rights under this Agreement does not operate as a waiver in respect of any subsequent breach.

16.8 Invalidity: If any provision of this Agreement is held to be illegal, invalid or unenforceable in whole or part, that provision shall to that extent be deemed not to form part of this Agreement and the legality, validity and enforceability of the remainder of this Agreement shall be unaffected.

16.9 Assignment and sub-contracting: Neither party shall without the prior written consent of the other (not to be unreasonably withheld or delayed) assign, transfer, charge, dispose of, deal with or subcontract its rights, beneficial interests or obligations under this Agreement.

16.10 No partnership: Nothing in this Agreement shall or shall be deemed to create a partnership between the parties.

16.11 Rights of third parties: Except as may be provided to the contrary in the Agreement, the Agreement does not create, confer or purport to confer any benefit or right enforceable by any person not a party to it.

17. GOVERNING LAW AND JURISDICTION

17.1 The Agreement shall be governed by and construed in accordance with English law

17.2 The courts of England and Wales shall have non-exclusive jurisdiction to hear and determine any suit, action or proceedings, and to settle any disputes, which may arise out of or in connection with this Agreement.

18. DEFINITIONS AND INTERPRETATION

18.1 In this Agreement, the following definitions apply:-

"Agreement" the agreement between Vismo and the Client comprised of the Order and these terms of business;

"Business Day" Monday to Friday, excluding public and bank holidays in the United Kingdom;

"Charges" the charges payable by the Client under this Agreement as set out in the Order;

"Client" the party specified as such in the Order;

"Commencement Date" the date specified as such in the Order;

"Competent Authority" any court, government body or regulatory authority having authority over or in respect of the Client or Vismo, including any branch, office or agency of any of them;

"Confidential Information" in relation to a party, the terms of the Agreement, and all other information and trade secrets relating to that party's business or clients or the business or clients of its group companies, which come into the possession of the other party pursuant to this Agreement, whether orally, or in documentary, electronic or other form, including all (if any) information held by the other as of the Commencement Date;

"Initial Term" twelve (12) months;

"Insolvency Event" each and any of the following in relation to a party:

(a) any action (corporate or otherwise), legal proceedings or other procedure or step being taken by any person in any jurisdiction in relation to or with a view to:

(b) the party being unable to pay its debts as they fall due or being insolvent; and

(c) the party entering into a composition or arrangement with its creditors or any class of them;

"Intellectual Property Rights" any and all patents, trademarks, trade names, service marks, copyright, moral rights, database rights, rights in design, rights in inventions, registered designs, trade, brand and business names, and any and all other intellectual property rights, whether or not registered or capable of registration and whether subsisting or anywhere in the world and including all applications and rights to apply for any of the same together with all or any goodwill relating to the same;

"Order" an order in writing placed by the Client and accepted by Vismo in respect of the supply of the Solution, and signed by the parties;

"Renewal Term" has the meaning given to it in Clause 2;

"Software" the smartphone tracking software supplied and licensed by Vismo, including any associated documentation;

"Solution" a licence of the Software and the supply of the tracking services as specified in the Order;

"Specification" the specification for the Software set out at www.vismo.com as may be updated or upgraded by Vismo from time to time;

"Term" the Initial Term plus each Renewal Term;

"Vismo" Vismo Limited (CN 04315312) whose registered office is at Park House, Clifton Park, York, Yorkshire, YO30 5PB; and

"Warranty Period" has the meaning given to it in Clause 11.1.

18.2 In this Agreement:-

18.2.1 references to "Clauses" are to Clauses of this Agreement;

18.2.2 references to any statute or statutory provision shall include any subordinate legislation made under it and shall be construed as references to such statute, statutory provision and/or subordinate legislation as modified, amended, extended, consolidated, re-enacted and/or replaced and in force from time to time; and

18.2.3 "includes" or "including" shall be construed without limitation to the generality of the preceding words.

18.3 If there is a conflict or inconsistency between any provision contained in these terms of business and any provision contained in an Order (or any combination of those documents), the following descending order of precedence applies to the extent of the conflict or inconsistency:

18.3.1 the Order; and

18.3.2 these terms of business.